Omzetbelastingaspecten van ondernemingsfinanciering (FM nr. 147) 2016/ES1.1:ES1.1 Objective and research questions

Omzetbelastingaspecten van ondernemingsfinanciering (FM nr. 147) 2016/ES1.1

ES1.1 Objective and research questions

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This research sets out to examine firstly the current position of legislation on turnover tax (VAT) as it applies to enterprise financing (or corporate finance) and secondly the extent to which the applicable legislation and interpretations thereof currently align with the purport of this tax. Based on these objectives, the research questions and sub-questions are as follows:

1.

What consequences do various methods of financing have for the application of the Dutch VAT Act 1968, both for the party providing the finance and for the enterprise receiving it, with answers specifically being sought to the following sub-questions:

a.

To what extent does the VAT Act 1968 apply consistently to the various forms of financing?

b.

Is the way in which VAT applies in the field of research clear? If not, which aspects are uncertain?

c.

Are any aspects in the field of research incompatible with European Union law? If so, which?

d.

What, essentially, is the quality of the current legislation and interpretations thereof in the field of research with regard to aspects such as lawfulness, respect for legal principles (specifically the principle of equality before the law and then, primarily, the principle of legal certainty), and simplicity, clarity and accessibility?

2.

To what extent does the current legislation, as examined in the first research question, reflect the purport of VAT, with answers specifically being sought to the following sub-questions:

a.

What is the purport of VAT (i.e. who and what is intended to be taxed)?

b.

Are any existing anomalies justified?

To answer these questions, the relevant legislation (specifically the VAT Act [Wet OB] 1968 and EU Directive 2006/112/EC (‘the VAT Directive’) and its legislative history, as well as case law and the literature, were examined. The research conducted in answering the first question focused on four methods of providing finance: (i) equity; (ii) bonds and other transferrable debt instruments; (iii) the granting of credit, and (iv) factoring and other ways of assigning debt claims. Lastly, proposals were made for possible ways to resolve the various anomalies identified.

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